Mil. R. Evid. 412

Federalevidence blog notes the case of United States v. Cioni, __ F.3d __ (4th Cir. April 20, 2011) (No. 09–4321). This is a reminder of some limits placed on the application of Mil. R. Evid. 412.

[T]he circuit found that the trial judge erred in applying the shield to a case not involving charges of sexual misconduct. The case emphasizes the limited applicability of the FRE rape shield rule. (Emphasis added.) . . .

The Cioni case notes a small but important detail in the application of FRE 412 as a rape shield law. Where sexual issues are not at stake in the case, the victim is fair game for impeachment by evidence of sexual misconduct, if the alleged sexual misconduct is relevant. Apparently in Cioni it was relevant. As noted by the circuit the error of excluding the sexual misconduct evidence of the victim’s other sexual liaisons under FRE 412 was harmless. It was harmless because the evidence excluded by the court’s application of FRE 412 was merely a cumulation of evidence that had "already been admitted into evidence" by other means at the defendant’s trial.

I thought I remembered a military case with a similar point? Let’s see what LEXIS tells us.

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